Bettie Merriweather v. The State, 33 Tex. 789

Ogden, J. The indictment in this case was for a theft from a house, and charged the defendant with stealing the property of Marie Leroux. On the trial it was proven that Marie Leroux was a married woman and the wife of -- Leroux, and that the property charged to have been stolen was the community property of Marie Lc roux and her husband. Under our laws the community property of the husband and wife is under the immediate control and management of the husband, and, excepting the homestead, is subject to sale by him only, and is therefore, during the marriage, his to all intents and purposes.

An indictment, therefore, for the theft of community property should allege the ownership in the husband, or it will not authorize a conviction. (Wharton’s Am. Crim. Law, p. 1827; 1 Hale, 513; Com. v. Davis, 9 Cush., 283; 12 Pick., 173, and Com. v. Williams, 7 Gray, 337.) In some of the States it has been decided that an indictment for the theft of the separate property of a married woman may allege the ownership in her; but in Massachusetts, in the case of the Com. v.

Williams, where the law in relation to the separate property is in some respects similar to our .own, the court held a different doctrine, and in the case of the Com. v. Davis it was decided that the property was properly laid in the husband, who had been absent for three years. It has also been held that when the wife had separated from her husband, and lived upon an income arising from property invested for her sole üse, an indictment charging the theft of that income should allege the ownership in the husband. '(Archibald’s Crim.

PL, p. 29.) In the case now before the court the husband and wife were living together in the house where the theft is charged to have been committed, and at the time of the alleged theft the husband was sleeping in the house. We are not aware of any authority in this State, and see no reason in the evidence of this case, for alleging the property stolen as in the possession of or owned by the wife.

We are therefore of the opinion that the court .erred in the fifth charge given to the jury, wherein the jury were permitted to draw the conclusion that under the law the wife could possibly have exclusive possession and control of any community property, or that she could hold any portion of the same in her own right, and that therefore the property might have been stolen from her. 3?or the error here indicated the judgment of the district court is reversed; and as the evidence shows that no legal conviction can be had under the indictment the case is dismissed. Reversed and dismissed.